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1. What is Bail?
The term Bail is used in several distinct senses: (1) It may mean the security-cash or bond-given for the appearance of the prisoner. (2) It may mean the bondsman (i.e., the person who acts as surety for the defendant's appearance, and into whose custody the defendant is released). (3) As a verb, it may refer to the release of the defendant (he was bailed out). The first meaning is the most common and should be employed for clarity.
Admission to bail is the order of a competent court that the defendant be discharged from actual custody upon bail. The discharge on bail is accomplished by the taking of bail (i.e., the acceptance by the court or magistrate of security-either an undertaking or deposit-for the appearance of the defendant before a court for some part of the criminal proceeding).
Bail is evidenced by a bond or recognizance, which ordinarily becomes a record of the court. The bond is in the nature of a contract between the state on one side and the defendant and his sureties on the other. The agreement basically is that the state will release the defendant from custody the sureties will undertake that the defendant will appear at a specified time and place to answer the charge made against him. If the defendant fails to appear, the sureties become the absolute debtor of the state for the amount of the bond.
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2. When talking about bail, what do you mean by the term undertaking?
An undertaking is a permissible type of bail security. The taking of bail consists of a competent court accepting an undertaking of sufficient security for the appearance of the defendant, according to the terms, or the surety will pay a specified sum to the state. Corporate sureties are commonly used, and the court will accept an admitted surety insurer`s bail bond if executed by the insurer`s licensed bail agent and issued in the insurer`s name by an authorized person.
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3. Must you always use a bail bondsman?
The defendant, or any other person, may deposit the sum mentioned in the bail order or bail schedule. Cash is accepted, and it is the practice for each court to adopt a written policy permitting acceptance of checks or money orders, upon conditions that tend to assure their validity, in payment of bail deposits. Some courts have a maximum amount over which a personal check will not be accepted. Depending upon the jurisdiction, government bonds may be accepted.
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4. What if someone believes that the money to be used to bail someone out is the product of criminal activity?
The judge or a magistrate may stay the release of a defendant if a peace officer or prosecutor files a sworn declaration demonstrating probable cause to believe the source of the consideration, etc. was feloniously obtained, or the judge or magistrate has probable cause to believe the source was feloniously obtained. If probably cause exists, the defendant then bears the burden by a preponderance of evidence to prove that no part of the source was so obtained. A defendant who prevails must be released on issuance of a bail bond as specified.
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5. What if I think the defendant is not going to show up for court after I have posted the bond?
There are remedies that can be done here as well, contact the bondsmen as soon as possible so that they can discuss your option in full detail with you!
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6. Can the defendant leave the state or the country while on bond?
You will have to get permission from the bonding office in writing before attempting to do so. If the court has given you direct instructions not to leave the state or country you must then get permission from the bail agent and the court before leaving. otherwise you are subject to arrest!
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7. Can a Bail Agent discount the fees on the premium?
The rate that you pay a bail agent is set by the department of insurance. There are companies that can legally charge 8%, but for the most part Bail is 10% of the bond amount plus $10 to $15 depending on the company you choose. A company that agrees to discount their fee may have their license pulled by the department of insurance. Some companies try and lead you into believing that you will receive a discount but in the end actually charge you the whole amount. Always ask to see a rate chart if you feel that you are being wrongly charged.
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8. What happens if the case go more then a year?
There are from time to time where a criminal case may take more then a year, and in this case a second premium will be owed to keep the defendant on bond! It may be wise to contact the attorney and try to get a bail reduction in the 10 or 11 month of the case in order to save a costly renewal premium.
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9. Is bail a matter of right?
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Although the right to bail has constitutional recognition in the prohibition against excessive bail, bail is not always a matter of right. However, with certain exceptions a defendant charged with a criminal offense shall be released on bail. Persons charged with capital crimes when the facts are evident or the presumption of guilt great, are excepted from the right to release on bail. However, a defendant charged with a capital crime is entitled to a bail hearing in the trial court to determine whether the facts are evident or the presumption great. A crime is a capital offense if the statute makes it potentially punishable by death or life imprisonment, even if the prosecutor / government has agreed not to seek the death penalty. It is presumed that the risk of flight of the defendant is great when he or she is facing death or life in prison without the possibility of parole.
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10. What happens if the defendant gets rearrested while out on bond?
Once the defendant is back into custody the bond can be surrendered and your liability will be terminated. There are a few problems here if you decided to surrender the bond you will lose the premium that was paid, and if you decided to get the defendant out on bond again, you will now have to post two new bonds and pay the premium on both bonds again.
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11. What is considered by the Court in fixing the amount of the bail?
The amount of the bail is primarily within the discretion of the judge or magistrate, with only two general limitations: First: The purpose of bail is not to punish, but only to secure the appearance of the defendant, and it should be fixed with that in mind. Second: Excessive bail, not warranted by the circumstances. Is not only improper but a violation of constitutional rights. In fixing the amount of the bail, the court takes into consideration the seriousness of the charge, the defendant's previous criminal record, and the probability of the defendant appearing at the trial or hearing.
Additionally, if public safety is an issue, the court may make an inquiry where it may consider allegations of injury to the victim, threats to the victim or a witness, the use of a deadly weapon, and the defendant's use or possession of controlled substances. A judge or magistrate setting bail in other than a scheduled or usual amount must state on the record the reasons and address the issue of threats made against a victim or a witness. The court must also consider evidence offered by the detained person regarding ties to the community and ability to post bond. The bail amount set by the court must be the minimum amount of bail that would reasonably assure the defendant's appearance. NOT the Maximum!
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